Texas Courts of Appeals
Ex parte Dixon
No. 14-25-00045-CR 6/30/26
Issue:
Did the trial court reasonably determine that prosecutors’ late disclosure of Brady material about the medical examiner in a murder case was not intentionally withheld to provoke the defendant into moving for a mistrial?
Holding:
Yes. The Court noted that once the State determined that the Brady file on the medical examiner had not been disclosed, it immediately delivered the file to the defendant. Two of the prosecutors on the case testified that they believed the third-chair prosecutor had delivered all Brady material to the defense. The third-chair prosecutor testified that while he delivered 10 Brady files on law enforcement officers to the defense, he did not realize there was Brady material in the office’s files on a chief medical examiner, because the majority of the information in the office’s Brady files dealt with law enforcement. “[W]e note that it is relatively difficult to conclude that the misconduct in this case—the State’s failure to timely deliver the … Brady file on [the medical examiner]—was a reaction to a trial that was going badly for the State because the misconduct occurred before trial even began. While theoretically not impossible, the trial court could have weighed the credibility of the witnesses and determined that such a situation was unlikely here.” The Court concluded that while the State’s misconduct was “clearly erroneous,” under the factors set out in Ex parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006), the prosecutors’ actions were not intentional or reckless. Read opinion.
Commentary:
When a trial judge has granted a mistrial based on something the prosecution did, the defendant can prevent the State from prosecuting him again if he can prove that the prosecutor intentionally goaded the defendant into moving for a mistrial. That is based upon the now-well-settled holding of the United States Supreme Court in Oregon v. Kennedy. The application of Kennedy is made more difficult in Texas because of additional factors set forth in Ex parte Wheeler. Even under the Wheeler factors, however, the defendant in this case could not prove his double jeopardy claim. It should be difficult for a defendant to successfully prove a double jeopardy claim when the alleged prosecutorial misconduct did not affect the viability of the case against the defendant. One could even argue that the trial judge need not have granted a mistrial in this case because the defense could have been given sufficient time to use this impeachment evidence at trial. Even so, this decision (especially pages 14–17) is a reminder for prosecutors to carefully review the evidence in their possession.
Pullen v. State
No. 04-24-00713-CR 7/1/26
Issue:
What is the allowable unit of prosecution under the 2019 version of Penal Code §43.26 for accessing pornography with intent to view?
Holding:
The number of webpages accessed, rather than the number of images on the webpage. In this case the defendant accessed a webpage that contained seven images of child pornography. The State contended that each transmitted image on the webpage should be a separate unit of prosecution, but the Court concluded that the statute was “genuinely ambiguous on the question of how many offenses the conduct at issue supports, [and] the rule of lenity tips the balance against multiplying punishments.” “We acknowledge the grave interests that CSAM [child sexual abuse material] statutes exist to protect. They are not merely directed at obscenity, they exist to deter the proliferation of material that normalizes the sexual exploitation of children, supplies leverage for the extortion of child victims by means of images of their abuse, and creates a permanent, recurrent record of that abuse (citations omitted). The question we resolve is simply how many such offenses one act of access supports, not whether the conduct may be punished at all. [The defendant’s] conduct remains a felony, and a single conviction under §43.26(a) carries substantial punishment. The power to affix the allowable units of prosecution rests solely with the Legislature.” Read opinion.
Dissent (Spears, J.):
“I respectfully dissent because I do not believe that §43.26 of the Texas Penal Code, as in effect in 2019, is ambiguous. I would conclude that each thumbnail image is a separate ‘visual material’ as defined by §43.26(b)(3)(B). Thus, I believe seven separate crimes were committed.” Read dissent.
Commentary:
There are a couple of caveats that may reduce the precedential value of this decision. First, this defendant was prosecuted only for “accessing with intent to view.” He apparently was not prosecuted for possession. Texas courts have given different constructions to those two terms that should encourage prosecutors to charge a defendant with both “possession” and “accessing with intent to view” depending on the facts of the case. Second, this decision is from a prosecution under the 2019 version of the statute. The statute has since been amended, and it now allows increasing a defendant’s punishment if he possesses multiple visual depictions of a child. That seems to have been the intent of the Legislature—to criminalize each depiction of a child that a defendant possessed. The foundation for the holding in this case was a decision from the Texas Supreme Court. Perhaps that fact, the legislative intent, and the dissenting opinion will encourage the Court of Criminal Appeals to review this decision.